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CASE NO.: Appeal (civil)  2005 of 2008

PETITIONER: Gurdial Kaur (D) Through Lrs

RESPONDENT: Piara Singh (D) Through Lrs

DATE OF JUDGMENT: 14/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   2005 OF 2008 (Arising out of SLP(C) No. 8585 of 2007)

S.B. SINHA,  J :

       Leave granted.

1.      Defendants in the Court below are the appellants before us.  They are  heirs and legal representatives of one Gurcharan Singh.   He was the owner  of the lands bearing Survey Nos. 101, 102, 159, 38, 85, Khatauni Nos. 118,  119, 224, 228, 45, 100 admeasuring 98 canals 19 marlas situated in Village  Bora Walli, Tehsil Zira in the State of Punjab.  He entered into an agreement  for sale of the aforementioned lands on or about 5.10.1964 with the plaintiff- respondent  A registered deed of sale was to be executed in terms thereof on  or before 15.6.1965.   Indisputably, the respondent paid a sum of Rs. 7,000/-  out of a total consideration of Rs. 15,000/- to the said Gurcharan Singh on  5.10.1964.   He died on 13.3.1965.

2.      Allegedly, prior thereto, the said Gurcharan Singh despite having been  called upon to execute and register the document did not come to the  Registration Office.   A suit for specific performance of the agreement was  filed against the appellants on 25.3.1966.   In the alternative, it was prayed  that a sum of Rs. 7,000/- be paid to the respondent together with interest.

3.      Appellants herein in their written statement denied and disputed  execution of the said agreement by Gurcharan Singh alleging that he was a  drunkard.   It was also alleged that Gurcharan Singh had executed a Will in  their favour.   In terms of a stipulation contained in the said agreement dated  5.10.1964 the possession of the lands was delivered to the vendee.

       The said suit was decreed on 31.5.1966.

4.      Appellants preferred an appeal thereagainst.   By a judgment and  order dated 20.10.1976, the said appeal was allowed and the suit was  remanded to the Trial Court for a fresh decision.

5.      First respondent filed an application for amendment of plaint  changing the area of the land from 98 canals, 19 marlas to 89 canals, 17  marlas.   Appellant in response to the said application, although admitted the  relationship between the parties, but without making any specific averments  stated that as to why the said application should not be allowed merely  "other amendments are opposed".

       Appellants also filed a suit against the first respondent for recovery of  possession on 19.12.1977.   

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6.      Respondent No. 1 filed another application for amendment whereby  the area of the suit land was amended to 94 canals 3 marlas.   

7.      Both the suits were heard together.   The learned Trial Judge, refused  to grant a decree for specific performance of the agreement of sale, but  decreed the suit in favour of respondent No. 1 granting his alternative prayer  for recovery for a sum of Rs. 8,260/- from the appellants herein.    In  arriving at the said conclusion, the learned Trial Judge noticed the averments  made in the plaint which are as under:-

"The plaintiff has been and is ready to perform his  part of the contract.   The plaintiff served a notice on  Shrimati Prithpal Kaur for herself on behalf of her  minor sons and daughter who are defendants through  his counsel on 8.6.65 intimating her about the above  contract.   Defendant No. 2 Shrimati Prithpal Kaur  refused to take delivery of the notice.  The notice is  attached therewith."                            Opining that the requirements to make averments in regard to  readiness and willingness on the part of vendee to perform his part of  contract as contained in clause (c) of Section 16 of the Specific Relief Act,  had not been satisfied, it was held:- "The language of paras Nos. 3 and 5 of plaint will  show that the plaintiff has averred that he is ready to  perform his part of the contract, but he has failed to  aver that he has always been also wiling to perform  his part of the contract."

8.      An appeal was preferred thereagainst by the respondent No. 1 which  was marked as Civil Appeal No. 32 of 1978.

9.      The First Appellate Court disagreed with the findings of the learned  Trial Judge as regards readiness and willingness on the part of the first  respondent to perform his part of contract holding that such a strict  construction of the pleading are not warranted.         It was opined:- "The appellant stated that he had always been ready to  perform his part of the contract.  It was contended that  it was not necessary to allege in the plaint that the  plaintiff was ready and willing to perform his part of  the contract but it is to be seen from the circumstances  of the case whether he was so ready and willing to get  the sale deed executed.   The conduct of the appellant  from the very beginning was that he made all efforts  to get the sale deed executed and he had the required  money with him.   It was contended that the word  readiness denotes the capacity of a purchaser to  purchase the land while the word willingness denotes  his conduct.   In the plaint it was mentioned that the  appellant was ready to perform his part of the contract  and his willingness was to be inferred from his  conduct and even if the word willingness was missing  in the plaint that would not disentitle the plaintiff from  the specific performance of the contract because in  case all immoveable property damages do not furnish  adequate relief\005."

                        The Court of First Appeal was of the opinion that as the  plaintiff/respondent failed to show his readiness and willingness to perform  his part of contract as contained in the said agreement of sale dated

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5.10.1964, so far as the new khasra Nos. are concerned, he was not entitled  to a decree for specific performance of contract stating:  "In the present case by adding two khasra numbers  regarding which there was no contract of sale the  plaintiff-appellant made a change in the essential  conditions of the contract and thus he was not entitled to  specific performance of the contract just as willingness of  a purchaser can be inferred from his conduct.   Similarly  his willingness in words is not necessary.   Where a  purchaser includes land in the plaint seeking its sale by  way of specific performance of the contract which was  not originally the subject matter of the agreement he  cannot be considered to be a person who is willing to  perform his part of the contract.   The plaintiff should be  ready and willing to perform his part of the contract  through-out the proceedings till the date of the decree and  if prior to that he negatives his readiness and willingness  to perform his part of the contract by his conduct he  cannot claim specific relief of the contract."

                        It was furthermore observed:

"\005..In a suit for specific performance of the contract of  sale the distinction between the conduct which would  disentitle the plaintiff from specific performance and  the conduct which would not so disentitle him is that  the plaintiff’s conduct shows that he was really  unwilling to buy the property then he is disqualified  from specific performance but he was always willing to  buy the property but in doing so made a mistake in  insisting on something which he was not entitled to get  from the defendant then such mistake would not  disqualify him from specific performance if the mistake  was corrected in time and the plaintiff had made it clear  that he had withdrawn the mistaken demand and the  mistake did not detract his essential willingness to  purchase the property."

        10.     Two second appeals were filed by the first respondent before the High  Court.   A learned Single Judge of the Punjab and Haryana High Court did  not frame any substantial question of law at the outset and recorded as  under:-

"After going through the record, I find that the  application for amendment was filed on the basis that  in the Revenue papers the ownership of Gurcharan  Singh vendor was changed which must be due to  Consolidation and the application was not opposed by  the opposite side except claim in costs which were  allowed by the order of the Trial Court dated 1st  January, 1977.  It is further clear from the record that  in the written statement no plea was taken that  because of amendment there has been negation of  contract.  On this basis it is urged by the learned  counsel that the first appellate court had made out a  new case in deciding the relief to the appellant on the  ground of negation of contract.

The other finding in the end of para is to the effect  that the appellant had been ready and willing to  perform his part of the contract.  Admitted stay to  continue."

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       However, it appears that at a later stage, three substantial questions of  law were formulated namely:

1.      Whether there is negation of contract on account of  change of khasra No.   pleaded by the plaintiff by way  of amendment in the plaint?

2.      Whether the plaintiff was ready and willing to  perform his part of the contract?

3.      Whether the plaintiff is entitled to a decree for  specific performance of agreement in the facts and  circumstances of the case?

       The said appeals were allowed.

11.     Mr. L. Nageswara Rao, the learned senior counsel appearing on behalf  of the appellant would submit that none of the questions aforementioned  give rise to any substantial question of law.   The third purported question  according to the learned counsel is not at all a substantial question of law.    

The first question according to the learned counsel is essentially a  question of fact.   In regard to the second question, it was submitted that  although this Court in some decisions opined that it would be essentially a  question of fact but in some decisions point out that it would be a mixed  question of law and fact and thus, in any event, the same being not a  substantial question of law, the impugned judgment cannot be sustained.

       It was furthermore urged that the High Court committed a serious  error as a decree could not have been passed in favour of the first respondent  as the subject matter of the agreement had altered.

12.     Mr.  Paramjit Singh Patwalia, the learned senior counsel appearing on  behalf of the respondent, on the other hand, submitted that in view of the  change in the Khasra Nos. or Khewat Nos. in the revenue records, an  amendment had to be brought about.   The amendment having taken effect  from the date of the institution of the suit, the judgment of the High Court  should not be interfered with.   It was urged that the learned Trial Judge as  also the first Appellate Court having rejected the plea of the appellants as  regards the genuineness of the agreement dated 5.10.1964 and/or purported  execution of the Will by Gurcharan Singh, it is not a fit case where this  Court should exercise its discretionary jurisdiction under Article 136 of the  Constitution of India.  

       It was submitted that escalation in price by itself may also not be a  sufficient ground for interfering with the impugned judgment particularly  when the respondent had been in possession of the said land for a long time  and had made improvements thereupon.

13.     A suit for specific performance of contract provides for a  discretionary remedy.   The Court in terms of Section 20 of the said Act may  for sufficient and cogent reasons refuse to grant a decree for specific  performance of contract.  In a case of this nature, the Court essentially would  be concerned with the identity of the land which was the subject matter of  agreement.    Like any other suit, the Court in terms of Order 7 Rule 7 of the  Code of Civil Procedure may, however, take into consideration the  subsequent events including the change in the revenue survey numbers in  respect of a particular land.   In other words, if the land in suit remains the  same which was the subject matter of an Agreement of Sale, a decree for  specific performance can be granted.   

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The matter, however, would be different where having regard to the  consolidation or any other proceedings, the subject matter of land itself  changes resulting in substantive change in the original agreement.    In terms  of Section 16(c) of the Specific Relief Act , the Court must arrive at a  finding that the plaintiff had not only averred, but also established readiness  and willingness on his part to perform his part of the contract.  In this case,  the appellant paid a sum of Rs. 7,000/- on the date of the execution of the  agreement.   It has been stated before us which has not been denied or  disputed that at the time of filing of the suit itself, the first respondent  deposited the balance amount of Rs. 8,000/- in the Court.    

The original description of the suit land was as under:-

"Suit for specific performance of contract of sale in  respect of the land measuring 98 Kls 19  marlas,   Khewat  No. 101,  102,  159, 38,  85,  Khatauni       Nos. 118,  119,  224,  220,  228,  45,  100,  Khasra    Nos.   63                                                             7(8-0) 8(8-0) 9(8-0)

63                                                               13/1(1-2) 14(8-0) 17/1(7-7) 6/3 (0-16) 5/1 (5-0) 6/2 (5-0)

62                                                               14(8-0)  7/2(0-13 3/2(2-0) 4(8-0)  7/1  (7-7)

55                      56                      63               20/1(3-16)              13/1(1-10)              10(8-0)  18(8-0)"

        However, upon amendment, the description of the suit lands as they  stand now are as under:- "Suit for specific performance of agreement of sale  dated 5.10.64, that the defendant Kirandip Kaur or  in the alternative all the defendants should execute a  sale deed in respect of land measuring 94-kanals   3  marlas, khewat No. 47, khatoni Nos. 76 min, 76, 79,  lilla Nos:

Rect. 58            Rect. 56                    Rect. 62

13/1(0-16)        13(1(1-10),   7/1/2(2-0), 7/1/3(3-5)

Rect. 62

3/2(2-0) 4/1(2-8) 7/2(0-13) 14(8-0), 5/1(5-0) 6/2 (5-8)

Rect 65

6/5(0-16) 7(8-0) 9(8-0) 10/1(6-12) 13/2 (6-10) 14(8- 0) 17/1 (7-17) 18(8-0)"

14.     We have noticed hereinbefore that the appellants did not spell out as  to what were his objections in regard to amendment of plaint.  It was merely  stated that "other amendments are opposed". In response to the application  for amendment it was stated;

"the application for amendments is opposed, it is  belated and after thought"

15.     It is therefore, evident that Gurcharan Singh was given two new plots  which were not the subject matter of the original agreement.  The area also

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diminished.          

       When the second application for amendment of plaint was filed, no  objection thereto was raised.  Allegedly, in the suit for recovery of  possession, the appellants mentioned the same description of land.   How  despite alteration in the description of the land in respect of a part of the suit  premises,  the respondent came into possession, if at all, is not known.

16.     We are not oblivious of the findings of the learned Court or the First  Appellate Court that the plaintiff/respondent did not bring on records any  material to show that owing to consolidation proceedings or otherwise, there  had been a change in the suit land in the sense that some other lands had  been allotted to Gurcharan Singh in stead and in place of the lands in suits.

17.     We have noticed hereinbefore that the plaintiff/respondent was  categorical in his statement as to why the amendment had to be brought  about, but neither the same was opposed nor any amended written  statement/additional written statement was filed.   Except the two plots,  identity of the rest of the plots remained the same.

18.     Mr. L. Nageshwar Rao, learned senior counsel may be right in his  submission that purported substantial questions of law as framed stricto  sensu do not answer the description as contained in sub-Section (5) of  Section 100 of the Code of Civil Procedure.  We, however, feel that the  proper substantial question which should have been framed having regard to  the admitted position is as to whether the contract of sale came to an end  only on account of change of Khasra Nos., although the subject matter of the  agreement substantially remained the same.  

19.     If on the admitted fact, it is found that at least substantial portion of  the land remained the same, in our opinion, there does not exist any bar in  granting a decree in respect of a part of the suit property.   For the said  purpose, even Section 12 of the Specific Relief Act would not stand as a bar.   Section 12 of the Specific Relief Act reads thus; "Section 12 - Specific performance of part of contract  (1) Except as otherwise hereinafter provided in this section  the court shall not direct the specific performance of a part  of a contract.

(2) Where a party to a contract is unable to perform the  whole of his part of it, but the part which must be left  unperformed be a only a small proportion to the whole in  value and admits of compensation in money, the court may,  at the suit of either party, direct the specific performance of  so much of the contract as can be performed, and award  compensation in money for the deficiency.  (3) Where a party to a contract is unable to perform the  whole of his part of it, and the part which must be left  unperformed either--  (a) forms a considerable part of the whole, though  admitting of compensation in money; or  (b) does not admit of compensation in money; he is not entitled to obtain a decree for specific  performance; but the court may, at the suit of the other  party, direct the party in default to perform specifically  so much of his part of the contract as he can perform, if  the other party--  (i) in a case falling under clause (a), pays or has paid  the agreed consideration for the whole of the contract  reduced by the consideration for the part which must  be left unperformed and a case falling under clause  (b),1[pays or had paid] the consideration for the whole

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of the contract without any abatement; and (ii) in either case, relinquishes all claims to the  performance of the remaining part of the contract and  all right to compensation, either for the deficiency or  for the loss or damage sustained by him through the  default of the defendant. (4) When a part of a contract which, taken by itself, can and  ought to be specifically performed, stands on a separate and  independent footing from another part of the same contract  which cannot or ought not to be specifically performed, the  court may direct specific performance of the former part."  

       Thus, for the reasons stated in the statutory provision, if a decree for  specific performance cannot be granted in respect of the entirety, an option  in terms thereof has to be exercised.

The rigours of Section 16(c) of the Act, however, are not such which  would for all intent and purport to be strictly construed.   Indisputably, it is  necessary to make averments in regard to the readiness and willingness as is  required under Section 16(c) of the Act in terms of Form 47 appended to the  Code of Civil Procedure.

20.     It is, however, trite that, even for the said purpose, the entirety of the  plaint must be taken into consideration.   If upon reading the plaint in its  entirety, the Court comes to the conclusion that for all intent and purport, the  requirements of Section 16(c) of the Specific Relief Act stood complied  with, no exception thereto can be taken.  We have noticed hereinbefore that  the First Appellate Court inter alia opined that not only the plaintiff has  expressed his readiness to purchase the land, his willingness to do so can be  culled out from other averments made in the plaint as and in particular the  one where he had stated that he had gone to the Registration Office for  getting the deed of sale executed and registered but it was the defendant,  who did not turn up thereafter.    He has also fulfilled the criteria of his  readiness and willingness to perform his part of the contract as not only he  had paid a sum of Rs. 7,000/- on the date of the execution of the agreement,    he had deposited a balance sum of Rs. 8,000/- on the date of presentation of  the plaint.   As a vendee what he could do was to offer the balance amount  of consideration to the vendor and make arrangements for getting the sale  deed executed and registered.   If he has done all that, we are of the opinion  that the Court of First Appeal was right in holding that he was ready and  willing to perform his part of the contract.

21.     The Court of First Appeal, however, committed a serious error insofar  as it failed to take into consideration that the identity of a part of the land  being the same, it was not necessary to make any further averment or proof  that he had been ready and willing to perform his part of the contract in  respect of the subject matter of the agreement.   Readiness and willingness to  perform one’s part of the contract must be confined to the subject matter  thereof.   If subject matter of the suit remained the same only because  Khewat Nos. or Khatauni Nos. changed, the same ipso facto would not  change.  To the extent the subject matter of the agreement remains the same,  a suit for specific performance of the contract can be decreed.    Respondent,  furthermore has all along been in possession of the major portion of the land  since a long time.    He is said to have made improvements on the land.   It  would be not, thus, equitable to deprive him from possession at least from  that portion of the land which was the subject matter of the original  agreement.

22.     We may at this stage also refer to a recent decision of this Court in  Ramakrishna Pillai and Anr. v.  Muhammed Kunju and Ors. [2008 (2)  SCALE 696]. The dispute before this court was whether the High Court had  erred in holding that the plea of readiness and willingness was not raised by  the plaintiffs.  Allowing the appeal, it was held: "The High Court’s judgment is clearly vulnerable.

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Firstly, there was no dispute ever raised by the  defendants about the readiness and willingness of  the plaintiffs to fulfill their obligations. The High  Court was clearly in error in holding that no plea  regarding readiness and willingness was raised. As  noted above, the trial court in its judgment has  referred to various portions of the averments in the  plaint where the plaintiffs had categorically stated  that they were and are always willing to fulfill  their part of the obligations. The High Court also  failed to notice that there was no plea either the  written statement or in the cross objections filed in  the appeal before the High Court that the plaintiffs  were not ready and willing to fulfill their part of  the obligation."

       As regards the findings of the High Court it was further held: "The conclusions are clearly contrary to the  pleadings of the plaintiffs. It was categorically  stated in the plaint in both the suits that the  plaintiffs are always ready and willing to fulfill  their part of the obligations and that defendants  were evading the execution for one reason or the  other."

23.     For the views we have taken, we are of the opinion that we in exercise  of our jurisdiction under Article 136 of the Constitution of India would  refuse to interfere with the judgment of the High Court, save and except to  the extent the decree passed in respect of two new Khasra Nos. namely 63- M/13/2(6-8) and 53M/13/1(0-16).   

24.     However, having regard to the fact that the plaintiff/respondent No. 1  was denied the decree for specific performance of contract by two courts,  although he had been in possession of the lands, in question from 1964, this  Court in exercise of its discretionary jurisdiction under Article 142 of the  Constitution of India as also Section 28 of the Specific Relief Act direct him  to pay a further sum of Rs. 30,000/- to the appellant.  The said sum may be  deposited within a period of six weeks from date. On deposit of the said sum, the Court should draw up a decree in  terms of this judgment.  

This appeal is allowed to the aforementioned extent.   There shall,  however, in the facts and circumstances of the case no order as to costs.